Citation Nr: 9919351
Decision Date: 07/15/99 Archive Date: 07/21/99
DOCKET NO. 97-34 733 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to Department of Veterans Affairs (VA) benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
INTRODUCTION
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an October 1993 determination by the Manila,
Philippines, VA Regional Office (RO), which found that the
appellant had no recognized military service with the Armed
Forces of the United States.
The appellant provided testimony at a personal hearing before
the RO in January 1999, a transcript of which is of record.
FINDINGS OF FACT
The Department of the Army has certified that the appellant
had no service as a member of the Philippine Commonwealth
Army, including the recognized guerrillas, in the service of
the United States Armed Forces, and claimed service with the
United States Army was unverifiable.
CONCLUSION OF LAW
The criterion of "veteran" for purposes of entitlement to
VA benefits has not been met. 38 U.S.C.A. §§ 101(2), 107
(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.1(d), 3.8, 3.9,
3.203 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background. The appellant submitted a claim of entitlement
to VA benefits in August 1993. In support of his claim of
"veteran" status the appellant submitted a document
entitled "Certificate of Membership," with the address of
Headquarters, Cagayan 14th Infantry, Army of the United
States, Philippines. This document reported that the final
roster of the Cagayan 14th Infantry showed that appellant
served with this group from July 1942 to November 1945. His
military duty was listed as that of Battalion Commander, and
his military rank was listed as that of Lieutenant Colonel.
Authority was listed as "G.O. No. 7 dtd, September 2, 1943,
USFIP-NL."
The appellant also submitted an NA Form 13038 from the
National Personnel Records Center (NPRC) and the National
Archives and Records Administration (NARA). This document
has a heading "Certification of Military Service," and
stated that the appellant was a member of the Army of the
United States (AUS) from July 1942 to November 1945. His
last grade, rank, or rating is listed as Lieutenant Colonel.
It is noted that the NA Form 13038 was issued in June 1993.
Additionally, the appellant submitted his own statement in
which he described the circumstances of his military service.
He reported that from July 1942 to May 1943 he served in
Toao, Cagayan Valley, Philippines, as a Platoon Leader, "B"
Company, 1st Battalion, 1st Division, 14th Infantry, AUS, with
a rank of First Lieutenant. The appellant stated that from
June 1943 to September 1944, he served in Toao, Cagayan
Valley, Philippines, as a Company Commander, "C" Company,
1st Battalion, 1st Division, 14th Infantry, AUS, with a rank of
Captain. Finally, he reported that from September 1944 to
November 1945 he served in Toao, Cagayan Valley, Philippines,
as a Battalion Commander, 1st Battalion, 1st Division, 14th
Infantry, AUS, with a rank of Lieutenant Colonel.
In October 1993, the RO informed the appellant that his claim
was disallowed because his name did not appear on the roster
of recognized guerillas. The appellant appealed this
determination to the Board.
In support of his claim, the appellant submitted a lay
statement from LA, who asserted that he had served in the
26th Cavalry Philippine Scouts, United States Army. LA
described the history of his unit, including its service with
the 14th Infantry, "USAFIL NL," in the Cagayan Valley. LA
stated that his affidavit was submitted for and on behalf of
the appellant to support his claims for benefits as a member
of the regular United States Army of the 14th Infantry
Regiment of Cagayan Valley, Philippines.
In an October 1993 statement, the appellant stated that he
had not been a member of either the Philippine Commonwealth
Army, Recognized Guerilla, or a Philippine Scout. Rather, he
emphasized that he had been a member of the regular United
States Army. Specifically, the 14th Infantry Regiment under
the command of the late General R. Fraeger, USFIP-NL.
However, he did state that he served as a guerilla with his
former outfit since that was the only way to combat the
enemy. The appellant also submitted several other statements
in which he inquired about the status of his claim for VA
benefits based on his reported service with the 14th
Infantry.
In February 1995, the RO sent the appellant a letter which
stated that the NPRC certification of service had been
prepared from alternative records sources, and that his
actual military records may have been destroyed in a 1973
fire. The letter also stated that based upon the history of
the 14th Infantry organization, personnel who joined after
July 15, 1942, did not qualify for AUS service. However,
those personnel could acquire recognized guerilla status.
The RO informed the appellant that his name was not listed in
the official roster of individuals determined to have
acquired AUS status through service with the 14th Infantry.
Therefore, additional information was being sought from the
United States Army Reserve Personnel Center (ARPERCEN)
regarding the nature of the appellant's reported military
service.
The appellant responded later in February 1995 with a
statement in which he asserted that he had belonged to the
26th Cavalry, Philippine Scout under the command of General
Fraeger. He stated that during the war members of the 26th
Cavalry were attached to the 14th Infantry, AUS. The
appellant also stated that he knew other members of the 14th
Infantry who were not on the official roster but were
receiving VA benefits. In March 1995, he identified two
individuals whom he stated received VA benefits but were not
on the official roster of the 14th Infantry.
Also in March 1995, ARPERCEN informed the RO that the
appellant had no service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas in the
service of the United States Armed Forces.
In March 1996, ARPERCEN stated that there were no "Project
J" records on file which indicated that the appellant's
alleged 14th Infantry (AUS) status was ever reviewed or
revoked. A search of the records contained in the Philippine
Army section failed to reveal a record for the appellant.
ARPERCEN also stated that if the appellant had re-acquired
status in the AUS, those records would be on file at the
NARA.
In August 1996, the NPRC informed the RO that the NA Form
13038 issued to the appellant was in error. That same month,
the RO received another statement from ARPERCEN which stated
that a search of the official records and archives on file in
the Philippines section failed to reveal a record for the
appellant. Therefore, it was determined that he did not
serve as a member of the Philippine Commonwealth Army,
including the recognized guerrillas, in the service of the
Armed Forces of the United States during World War II.
ARPERCEN also stated that there were no "Project J" records
on file which indicated that his alleged 14th Infantry (AUS)
status was ever reviewed or revoked. It is noted that this
statement was in response to the RO's inquiry based upon the
appellant's claimed service with either the 14th Infantry or
the 26th Cavalry. The RO also provided ARPERCEN with the
information listed on the NA Form 13038.
An April 1998 Memorandum for File summarized the aspects of
the appellant's claim of eligibility for VA benefits. The
Memorandum also summarized the history of the 14th Infantry,
and noted that the appellant's name was not on the official
roster of those who had acquired AUS status. With respect to
the NA Form 13038, the RO noted that it had considered this
document and the appellant's account of his military service
suspect for several reasons. For instance, the RO found it
difficult to believe that the appellant would have been a
commissioned officer in the Regular AUS (including the
Philippine Scouts), without any evidence of prior military
training less than a month after attaining the age of 16 -
the evidence shows he was born in June 1926. The RO also
found it difficult to believe that the appellant would have
been promoted to the rank of Lieutenant Colonel while age 18,
and discharged with the same rank from the regular United
States Army just past his 19th birthday. In regard to the
two individuals identified by the appellant in his March 1995
statement, the RO noted that while VA pension benefits had
been awarded to those individuals, this award was not based
upon service with the 14th Infantry during World War II.
Rather, it was based upon post-World War II service. The RO
also noted that the appellant had originally asserted that
all of his military service was with the 14th Infantry, but
then stated in February 1995 that he had actually served with
the 26th Cavalry. However, the RO noted that LA - the
appellant's own affiant - who was reportedly a member of the
26th Cavalry had identified the appellant as belonging to the
14th Infantry, not the 26th Cavalry. Furthermore, the RO
noted that ARPERCEN had been asked to verify whether the
appellant had any recognized service, and the response was
negative. Additionally, the NPRC was contacted with their
attention to the inconsistencies noted in the 1993
certification (the NA Form 13038). The RO noted that the
NPRC was specifically requested to provide copies of the
secondary sources that were utilized that led to the issuance
of the NA Form 13038. The only response from the NPRC was
that the NA Form 13038, issued to the appellant, had been in
error.
Other evidence submitted by the appellant in support of his
claim was a copy of a September 1996 Board decision
concerning another individual's claim of basic eligibility
for VA pension benefits. This individual's claim was
granted.
At his January 1999 personal hearing, the appellant stated
that he had memory problems and, as a result, he might have
difficulty recalling precise answers to questions. He
testified that he was inducted into the 26th Cavalry by its
commanding officer in July 1942, and that he was honorably
discharged in November 1945. However, he stated that his
discharge documents were burned in a fire at his apartment in
1947. On inquiry, the appellant testified that he may have
been mistaken in his earlier statement that he served in
Company B, 1st Battalion, 1st Division, 14th Infantry.
Nevertheless, he asserted that he had belonged to the 26th
Cavalry, Troop C.
Legal Criteria. The term "veteran" means a person who served
in the active military, naval or air service and who was
discharged or released under conditions other than
dishonorable. 38 C.F.R. § 3.1(d). Service in the Regular
Philippine Scouts is included for pension, compensation,
dependency and indemnity compensation, and burial benefits.
38 C.F.R. § 3.8(a). Service as a Philippine Scout in the
Regular Army inducted between October 6, 1945 and June 30,
1947, inclusive, and in the Commonwealth Army of the
Philippines from and after the dates and hours when called
into service of the Armed Forces of the United States by
orders issued from time to time by the General Officer, U.S.
Army, pursuant to the Military Order of the President of the
United States dated July 26, 1941, is included for
compensation benefits, but not for pension benefits. Service
department certified recognized guerrilla service and
unrecognized guerrilla service under a recognized
commissioned officer, only if the person was a former member
of the United States Armed Forces (including the Philippine
Scouts), or the Commonwealth Army, prior to July 1, 1946, is
included for compensation benefits, but not for pension or
burial benefits. 38 C.F.R. § 3.8(c) and (d).
As a threshold matter, one claiming entitlement to VA
benefits must qualify as a claimant by submitting evidence of
service and character of discharge. Aguilar v. Derwinski, 2
Vet. App. 21 (1991); Grottveit v. Brown, 5 Vet. App. 91
(1993). For the purpose of establishing entitlement to VA
benefits, the VA may accept evidence of service submitted by
a claimant, such as a DD Form 214, Certificate of Release or
Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate service
department under the following conditions: (1) The evidence
is a document issued by the service department; (2) The
document contains needed information as to length, time and
character of service; and, (3) in the opinion of the
Department of Veterans Affairs the document is genuine and
the information contained in it is accurate.
38 C.F.R. § 3.203(a) (1998).
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter, "the Court") has held that the "VA
is prohibited from finding, on any basis other than a service
department document, which VA believes to be authentic and
accurate, or service department verification, that a
particular individual served in the U.S. Armed Forces." Duro
v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition, we
note that "service department findings are binding on the VA
for purposes of establishing service in the U.S. Armed
Forces." Id.; see also Dacoron v. Brown, 4 Vet. App. 115,
120 (1993).
Analysis. In order to qualify for VA benefits, a claimant
must demonstrate that he, she, or the party upon whose
service the claimant predicates the claim had basic
eligibility for the benefits claimed. A person seeking to
establish veteran status must do so by a preponderance of the
evidence, and the benefit-of-the-doubt doctrine is not
applicable to that determination of status. See Struck v.
Brown, 9 Vet. App. 145 (1996).
On the basis of the evidence of record, there is no
demonstration of qualifying military service in this case.
As noted by the April 1998 Memorandum for File, ARPERCEN has
certified that the appellant does not have recognized
military service, and the NPRC has stated that the NA Form
13038 which stated that the appellant served in the regular
United States Army was issued in error. The appellant has
since submitted no United States service documents in support
of his claim, or any further information different from that
previously submitted to ARPERCEN, which would warrant a
request for recertification. See Sarmiento v. Brown,
7 Vet.App. 80 (1994). Accordingly, the VA has fulfilled its
duty under 38 C.F.R. § 3.203(c).
With respect to the appellant's assertions about other people
who have received VA benefits and were not on the official
roster for the 14th Infantry, the Memorandum for the File
shows that the cases of these individuals were decided on
facts different from that of the instant case. The same is
true for the September 1996 Board decision submitted by the
appellant. The Board notes that its decisions are
nonprecedential in nature and each case is decided on the
basis of the individual facts of the case in light of the
applicable procedure and substantive law. 38 C.F.R. §
20.1303.
Inasmuch as the United States service department's
verification of the appellant's service is binding on the VA,
the Board concludes that the appellant is not considered a
"veteran" for purposes of entitlement to VA benefits and
has not attained status as a claimant. Therefore, the
appellant's claim for entitlement to VA benefits must be
denied as a matter of law. See Sabonis v. Brown, 6 Vet.App.
426 (1994).
In Soria v. Brown, 118 F.3d. 748 (1997), the United States
Court of Appeals for the Federal Circuit noted that where
service department certification was required, VA has long
treated the service department's decision on such matters as
conclusive and binding on VA. If the United States service
department refuses to verify the appellant's claimed service,
the applicant's only recourse lies with the relevant service
department, not VA. 38 C.F.R. §§ 3.9 and 3.203.
ORDER
Basic eligibility for VA benefits is denied.
Gary L. Gick
Member, Board of Veterans' Appeals